Submission of the Young Communist League of South Africa on the dissolution of the Directorate of Special Operations (DSO) Presented to parliament on the 9 September 2009

Introduction and Background

We welcome this opportunity for a public consultation process that is due to us, the public, as protected in the constitution of the Republic of South Africa. We believe that the committees involved in the process of relocating the DSO into SAPS are faced with one of the most sensitive process which some have decided to throw money into it in order to ensure that they undermine the voices of the majority. We should however indicate that as the youth we will be more worried if the final decision on what happens to the Scorpions is taken without consideration of all the submissions made as this will be a threat to democracy and our own future.

It will be foolhardy for those calling for the dissolution of the Scorpions to undermine the concerns of those who want it to remain on the grounds that they are not consulted, we need to defend the right of the public to be consulted at all times on all issues, and applaud this Committee for having afforded us this important platform;

We must indicate that even if the final process and outcomes concurs with our submission, we need to emphasize the fact that the reflections we make here should find expression in the Act, alternatively, reasons should be shown to all of us who tirelessly made submissions on why some of our proposals were not agreed to. Further, we must indicate that the final arbiter on this matter is the people and their representatives in this house and thousands of these people have made submissions during the provincial hearing and do support the basic thrust of both Bills.

We want to indicate beforehand that we support the broad thrust and intention of the NPA Amendment Bill [B23-2008] and SAPS Amendment Bill [B30-2008]. We aregoing to be submitting why we support these Bills and what are the issues we believe should be considered in the final debate and voting for the Amendment Bills. At the later part of our presentation we will focus on the new institution that will be created and replace the DSO.

All members of parliament should vote for the DSO to dissolve

We are however opposed to attempts by certain political parties to try and take away the vote of some of the ANC Members of Parliament on the basis of the fact that they were once investigated by the Scorpions of the Travelgate Scandal. We cannot ask people not to exercise their Constitutional Right as public representatives on the basis that they were investigated. We should rather contest their being MP’s completely, or leave them to vote on any issue they so wish. There is nothing in law that will prevent them to do so.

We also wish to contest, in the same breath, the notion that the ANC has decided to dissolve the Scorpions because its high-profile leadership and public servants have been investigated by this institution. This makes no sense and seeks to merely score political points since we are approaching electioneering. It also makes no sense because their prosecution is not being nullified by the dissolution of the Scorpions. We want to appeal to political parties not to see this as a mere process of electioneering, and understand that justice and combating crime are a central feature of this debate, and that we need to locate it within that context.

The urgency of dealing with crime for all of us

The need to fight crime, and our desperate need for solutions in combating crime, should not blur our reasoning in terms of the institutions that are in place to fight crime, and how we need to deal with the Dissolution of the DSO. Whether we retain the Scorpions in its current form or relocate its investigative role to SAPS, there is in any way a need to strengthen the capacity of SAPS to fight all forms and manifestations of crime through more human and capital resources.

The DSO continued to create an impression that it will fight crime that affects certain sections of the community (the elite) and the rest shall be dealt with by SAPS (which is characterized as weak, lack quality and cannot deal with crime). This has created the unfortunate dichotomy in the war against crime, and no wonder some of the responses from the communities and the public hearings are clearly divided along class and racial lines.

Young people are affected by crime, especially black working class and poor youth, and that the notion that crime is affecting the elite (those who have) more than everyone should be contested. We are all victims of crime. The trafficking of drugs, human trafficking, car theft syndicates and many other syndicate and specialized crimes affects the black working class and the poor as much as they affect the rich. Many of the elite relies more on both the DSO and private security companies, thus, the weakness of the SAPS have always been overlooked and never entertained because there are alternatives for the rich to deal with crime.

The same goes for corruption, especially public sector and corporate corruption, which has an effect on the economy of our country, affects service delivery and robs the poor of their deserved services. An example of this includes the corruption relating to the child support grants which went to people who did not deserve it, or the corporate corruption in the form of price fixing by Tiger Brands management which saw the poor paying more than the cost of bread and other products. These are the crimes that should be pursued by a specialized crime units, and that some of these crimes where not necessarily pursued by the Scorpions.

For us this must be about justice, nothing less and nothing more. It must about be about justice for the poor and working class communities. Based on all of the above issues, we believe that at the end, crime prevention, bringing perpetrators to book, fighting both corporate and public sector corruption, should be at the core of the debate on where the DSO should be based and what should be its constitution.

We must indicate that from our perspective, crime and corruption plays a role in undermining a developmental path of our state as it reverses its gains, corrodes and corrupts the policing systems, and has a link to international finance capital. It also undermine democratic state institutions and should thus be fought from all quarters.

Mandate of the DSO

The DSO was established to deal with serious crimes, especially those criminal activities, which threaten the security of the country. In particular, this specialized unit was set up to “investigate, and carry out any functions incidental to investigations on any criminal or unlawful activities committed in an organized fashion…”1The NPA Act vests special investigators within the DSO with “the powers as provided for in the Criminal Procedure Act, 1977 (Act No. 51 of 1977), which [powers] are bestowed upon a … a police official…”. This means that the NPA Act empowers special investigators within the DSO to also perform policing function. In essence, the DSO is mandated to investigate organized crime and related criminal activities, which include, but not limited to, international drug smuggling, human trafficking, corruption in government, serious economic and financial offences, money laundering and racketeering.2

Constitutional issues relating to the DSO

This debate on the Dissolution of the Scorpions should take into consideration some of the Constitutional issues that were either overlooked when forming the Scorpions or the continued unconstitutional conduct that became synonymous with the investigative and prosecutorial role that the Scorpions played. Some of these issues included the pronouncements by the Khampepe Commission, the Heifer Commission and the Public Protector.

Recommendations of the Khampepe Commission;

Need to separate Prosecution and Investigation

Applaud the extent of the success rate that the NPA has in prosecuting most of its crimes (reported 80% although disputed by McCarthy) however, stress a notion of “prosecuting-investigators” and “prosecuting-prosecutors”

The Right to a Fair Trial being compromised

Leak by media (although this may not be addressed by relocation, it has however not become SAPS policy to smear individuals in the media before they appear in the actual trial)

Trial through the Media

Compromising effect of enjoining prosecution with investigations and how this has led to the temptation of investigating in a prosecutorial manner

Location of investigation in the SAPS (no matter who deals with it) in order to satisfy the Khampepe Commission’s need for political accountability in the Ministry of Police.

The DSO has also undertaken intelligence work, which brought it into conflict with some of the Intelligence structures, and has also sought to bring conflict amongst political parties. We are still worried that some of the people who were invlolved in this sham intelligence work, peddling information and basically seeking to frame individual politicians and political parties with treason are yet to be brought to book. We want to use this opportunity to call for immediate action as part of this broader discussion on those who were invlolved on the Special Browse Mole Report.

Public perception of the Scorpions

Since the inception of the Scorpions, it has mainly been known as an institution which:

Cherry picking in terms of prosecution

Leaking information about prosecutions and investigations in order to tarnish images of individuals, whilst some of these individuals went free long after the cameras have portrayed them as criminals.

Most of the work done by the DSO was outsourced to private security companies

Unhealthy competition between DSO and SAPS (the airport fiasco where both SAPS and DSO were investigating same crime and ended up clashing)

Having both the prosecution and investigative function under one directorate

Real or perceived political control of the Scorpions

Letting real criminals go free through their scandalous plea-bargaining processes, some of them including the Thatcher case;

All of these issues do not necessarily have to do with the prosecution or persecution of high profile members of the ANC, but has to do with the nature and character that the Scorpions adopted in fighting crime. These factors needs to be taken into consideration as we constitute the new institution. It must be emphasized that most of these instances, especially under the leadership of Bulelani Ncguka, have led to the DSO loosing legitimacy and public support. We cannot have an institution that has conducted itself as a private army being responsible for crime prevention in the same form and manner that it is currently.

The New Institution: DPCI and some of the perceptions about police

Equally, because crime affects the economy, and threatens political stability and our new democracy, it is not only the so called rich that are affected by crime but everyone living within the South African borders. This debate should be seen as an opportunity for the need for quality investigative skills, human resources, technical expertise, and the link with prosecution which are invested in the DSO should spread across all sectors and institutions fighting crime is very important. We cannot continue to complain about the inefficiencies of SAPS when we know that it is the investment in resource that made the DSO what it is today.

There is perception that the police are corrupt and that the Scorpions can be the only institution that can deal with their corruption, however, there is reported corruption in the NPA itself. However, retaining the Scorpions on the basis that it fights police corruption, and refusing to locate it within the political leadership of the Ministry of Safety and Security does not in any way deal with police corruption or transform the SAPS into a better, coordinated crime fighting machinery. There is a need for an independent institution that handles police corruption, not only that as alleged of the National Police Commissioner, but even that of the Metro Police who accepts or ask for bribes from motorists.

The Scorpions cannot be seen as an institution that is meant either to deal with police corruption or be the alternative for police inefficiencies, however, should it should be seen as complementing SAPS in their function to combat crime. Locating the investigative function of the Scorpions into SAPS is therefore the only logical conclusion.

The new institution should have powers and play a role equivalent to that of the DSO. This means that they will have to report directly to the National Commissioner, whilst managing the possibility of retained conflict, tension and competition.

The new institution should also be responsible for all forms of organized crime, and should even house the specialized sections falling within SAPS, alternatively, a co-ordinating structure at the highest level should be established in order to ensure that there is effective and yet seamless strategy on fighting crime and corruption.

We believe that the new institution should also include Crime Intelligence, Forensic Investigations, Home Affairs (section on Immigration and Customs), FICA and the South African Revenue Services either under one roof or being coordinated by a structure (with powers) within SAPS. We wish to emphasise the fact that this can be linked with prosecutorial investigation in order to enhance its capacity to prosecute fully, however, the prosecutors should not be involved in the final prosecution of the cases they investigate.

We should send a warning to criminals, with the formation of the new structures, that we are forming an institution that is TEN TIMES MORE EFFECTIVE, EFFICIENT AND VIGOROUS in fighting crime as compared to the Scorpions. It must fight crime tenfold, and help the prosecutions authorities to bring criminals to book. The starting point of this institution cannot be negative, but must be meant to send a message that we are dissolving the Scorpions in order to be more effective in combating crimes. When criminals hear of this new institution, they must know that crime does not pay.

Labour Relations Matters

We are aware that there are issues relating to labour relations, and we are also aware that some of the people who were performing other functions outside investigations will be affected. We believe, as the YCLSA, that there are members of the DSO who are committed to fighting crime and serving this country. We know that the DSO has equipped them with the necessary skills and are at a vantage point to continue to provide better policing and investigations. We want to call on all of these young people who had dedicated themselves to the fight against crime, whether Black or White Indian or Coloured, not to see the dissolution of the Scorpions as a motion of no confidence on their part, and to join in on the new structure that will be created.

We also believe that issues of Labour Relations should be addressed according to the laws of our country, and that were, possible, all the skills should be absorbed into the SAPS. We however want to emphasise the fact that there needs to be security vetting for all of those who are going to be joining in on the new structure. This is mainly because there has always been a perception that some of the employees of the DSO are from Apartheid era security forces, and that they continue to serve the interest of that regime.